High Court refuses to entertain additional evidence after 11 years

NT Correspondent

Bengaluru: Stating that clients should exercise due diligence, the High Court has refused the application of a litigant who wanted to produce new evidence 11 years after the filing of the case.

“Admittedly, the suit was filed in the year 2005 and decreed in 2008. The appeal (before the High Court) was filed in the year 2008 and the instant application was filed in 2021. The averments made in the affidavit do not satisfactorily demonstrate exercise of due diligence on part of the defendant. Therefore, we find no merit in the application,” the division bench of Justice PS Dinesh Kumar and Justice CM Poonacha said while dismissing the appeal.

Though under Order 41, Rule 27 of the Code of Civil Procedure, the Court can permit any party to furnish additional evidence if the applicant was unable to produce the documents despite exercise of due diligence, the HC noted that in this case, the applicant had failed to do it satisfactorily.

The appeal was filed by one Shankaranarayana Setty, a resident of Mysuru. He had entered into an agreement with Dakshina Kannada Jilla Sangha in November 1997 to sell lands in Bhugathagalli for Rs.1.5 crore.

Since all members of the Sangha did not want to purchse sites in the layout formed there, an affiliate association, Parashurama Welfare Association, was formed.

In 1998, Setty entered into an agreement with Parashurama Welfare Association for sale of land and received Rs.21,50,000 as advance.

A revised agreement was signed subsequently and the mortgage Setty had with the Central Bank of India of Rs.40,00,000 was agreed to be discharged.

However, the Association came to know that the land was also mortgaged to Vijaya Finance Corporation and it was still subsisting. The matter reached the civil court which ruled in favour of the Association. Setty filed an appeal in the High Court in 2008 which came to be heard by the division bench and disposed of recently.

The HC noted that the Association had paid Rs.1,32,52,000 of the Rs.1,40,02,000 amount that was agreed upon and the balance was only Rs.7,50,000. “the learned Trial Judge, in our view has rightly noticed in the judgement that the plaintiff (Association) had paid a major portion of consideration and therefore it could be inferred that plaintiff was ready and willing to perform its part of the contract and further that it was the defendant (Setty) who was not ready and willing to perform his part of the contract.”

Setty had filed an application in 2021 before the HC stating that he had additional evidence and it showed that the balance sheet of the Association was below Rs.1,00,000 and it could not have paid the remaining amount to complete the sale transaction.

The HC however refused to entertain it. Dismissing the application as well as the appeal he had filed in 2008, the HC said, “Having re-appreciated the evidence on record, we find no perversity in the impugned judgement calling for interference by this Court. Resultantly, this appeal must fail.” RFA 641/2008